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February 11, 2010

Define native customary lands

Filed under: NCR Land Issues,Politics Of Development — Pengayau @ 11:50 am
Tags: ,
Taken from MalaysianMirror

By Joseph Tawie

KUCHING – The problems pertaining to native customary rights (NCR) in Sarawak are largely a consequence of the native customary lands (NCL) being issued out to private firms without the knowledge and consent of the land owners, claims prominent NCR land lawyer Baru Bian.

He alleged large tracts of NCL had been included in timber licences, oil palm provisional leases, re-planting licences, quarry licences and mining licences.

The problem, he said, stemmed from differing views of what amounts to NCL.

“The government, in all these years, is of the view that only the farmed lands or temuda cultivated before January 1958 are NCls.

“On the other hand, the natives had all the while believe that their NCLs extend beyond the temuda, to the pemakai menua (communal or territorial domans) and the pulau or pulau galau (community forest reserves) areas.”

A hero among the natives

Baru said the natives’ view was confirmed to be the correct legal position following the landmark case of Nor anak Nyawai  vs BPP Sdn Bhd and Others about 10 years ago.

NCR Land Concept can be read here  https://pengayau.files.wordpress.com/2010/02/konsep-tanah-hak-adat-bumiputra.doc

nor-anak-nyawai(Nor, 70, (pic) was a local hero who took the Sarawak government proxies to court. It was almost unthinkable then.

(He was barely able to write, but Nor was brave. He brought the multi-million ringgit Borneo Pulp Paper (BPP) – a company backed by the state government – to court over land disputes.

(Many thought he was insane as he was up against  Malaysia’s longest serving chief minister, Abdul Taib Mahmud.

(Nor and his people won the fight. It was a landmark NCR land dispute case in Sarawak).

“Notwithstanding the legal judgment coming from the highest court in the land, the government is still not willing to recognise this NCL definition as NCL are still affected by such licenses and leases.

The most pressing issues in Sarawak

“For this reason, it is incumbent upon the government to survey and demarcate the boundaries of NCLs and either gazette or issue titles to such NCLs,” he said.

In a recent news report, Minister in the Prime Minister’s Department Idris Jala was quoted as saying that the NCR problems came about as a result of land owners quarreling over territorial rights because the lands were  not demarcated.

The NCR land problems are the most pressing issues in Sarawak and Idris, who heads the department’s Performance Delivery and Management Unit (PEMANDU ) believes the unit could solve these issues.

Commenting on the minister’s remarks, Baru said: “I agree with the minister as to the need to issue titles to NCL but disagree to his reason that this is necessary as NCL owners quarrel over territorial rights.

“In my years of dealing with NCR claims, I had come across only one case where there exists overlapping claims.

“That was after some instigation by some outside elements.

baru-bian-native-land“I agree there are possible overlapping claims between neighbouring villages over NCR land areas or pemakai menua but this issue had been dealt with easily by the natives themselves through their own adat (custom)  and customary of laws.”

Investigate NCR land claims

Baru said that in view of such different understanding on what comprised NCL, disputes arise not between the natives themselves but between the natives and the state Government and the licensees.

Baru, who is Sarawak PKR chief, said the party had proposed that a Land Commission, headed by a native, should be formed with powers to investigate and survey NCR claims and issue titles NCLs.

He added that the PKR policy on the matter is clear and could not only settle areas claimed by NCL owners – thus, preventing future encroachment vis-à-vis licensee or lessee owners or the issuance or alienation of NCL to third parties – but also assist NCL owners to better themselves in business enterprise.

He hopes PEMANDU will stick to its plan to ensure NCR land claims are investigated, surveyed and eventually issued titles.

Baru said the government may be shocked, after investigating and surveying the claims of NCR lands, to discover that, perhaps, almost the whole land in Sarawak is indeed NCL.

Debunking the ‘new concept’

On a reported plan by the chief minister to develop NCLs on a new concept, he said it would not work and would only cause more miseries and disappointments.

“Pepper, huge rubber gardens and padi farms were taken into this project.

“Many lamented, they would have been in a much better position if they had continued with their pepper and rubber gardens than allowing their NCL being used for this so-called new concept.” he claimed, adding that his legal firm was handling more than a hundred cases.

“I believe that the development of NCL could successfully be implemented only if the trustees of the project, on behalf of the natives, are genuine and transparent in exercising this trust given them.

“The alternative is to have some professional persons to represent the NCL owners in a joint-venture company, with powers to vote and, at the same time, to be one of the signatories to the JV company’s cheques.

“Only with such arrangement would I think the natives’ rights in the JV could be truly protected,” he said.

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